Sections 368, 369, 370 and 371 CrPC: High Court Powers in Death Sentence Confirmation
Sections 368 to 371 of the Code of Criminal Procedure, 1973 formed part of Chapter XXVIII, dealing with submission of death sentences for confirmation. This article explains the statutory scheme applicable under the CrPC before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Background: confirmation of a death sentence under Section 366 CrPC
Section 366 CrPC required a Court of Session, after passing a sentence of death, to submit the proceedings to the High Court. The death sentence could not be executed unless confirmed by the High Court. Sections 368 to 371 prescribed the High Court's powers and the procedure following such submission.
Section 368 CrPC - Power of High Court to confirm sentence or annul conviction
Section 368 applied to a case submitted to the High Court under Section 366. It empowered the High Court to examine the conviction and sentence rather than merely approve the death sentence.
The High Court could:
- confirm the sentence or pass another sentence warranted by law;
- annul the conviction and convict the accused of an offence for which the Court of Session could have convicted the accused;
- order a new trial on the same charge or on an amended charge; or
- acquit the accused.
The proviso protected the accused's appellate opportunity: an order confirming the sentence could not be made until the time allowed for filing an appeal had expired, or, where an appeal was filed within that period, until the appeal had been disposed of.
Section 369 CrPC - Confirmation or new sentence to be signed by two Judges
Where the High Court consisted of two or more Judges, Section 369 required the confirmation of the sentence, or any new sentence or order passed in the submitted case, to be made, passed and signed by at least two Judges. The provision therefore imposed a statutory two-Judge requirement for orders in death-sentence confirmation proceedings before such a High Court.
Section 370 CrPC - Procedure where Judges differ in opinion
Section 370 dealt with an equally divided Bench. If the Judges hearing the submitted case were equally divided in opinion, the case had to be decided in the manner prescribed by Section 392 CrPC. Section 392 governed the procedure to be followed when Judges of a High Court Bench hearing an appeal were equally divided.
Section 371 CrPC - Procedure after the High Court's confirmation order
Section 371 prescribed the communication of the High Court's decision. After an order of confirmation or another order had been made in a death-sentence reference, the proper officer of the High Court was required, without delay, to send a copy of that order to the Court of Session. The copy had to bear the seal of the High Court and be attested by the officer's official signature.
How Sections 366 to 371 worked together
The statutory sequence was straightforward: the Sessions Court submitted a death sentence under Section 366; the High Court could direct further inquiry or additional evidence under Section 367; Section 368 specified the range of orders available to the High Court; Section 369 required the prescribed judicial concurrence and signatures; Section 370 addressed an equal division of opinion; and Section 371 required prompt transmission of the High Court's order to the Sessions Court.
CrPC and the later BNSS framework
The Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the CrPC framework prospectively from its commencement, subject to its statutory savings and transitional provisions. This page specifically explains Sections 368, 369, 370 and 371 of the CrPC for the pre-BNSS legal position and for proceedings in which the former Code remains relevant.